High Court: Technology and Construction Court judgments, 2012

Contractual inspection and disclosure clauses using broad language such as relating to may extend beyond contemporaneous source records. They can include later…

A party claiming delay damages must prove that the complained-of event actually caused delay. The occurrence of variations, late information or late materials…

A valuer may be negligent both because the valuation is outside the reasonable margin and because the valuation exercise was performed incompetently. A…

A professional valuer’s duty is ordinarily to provide a valuation of current market value, not a predicted resale value, unless the retainer contains special…

A stay suspends proceedings and outstanding time limits; it does not abolish them. Where a stay expires on a specified date, the proceedings resume…

In construction-related negligence, the contractual context is relevant to defining the scope of a tortious duty owed to persons outside the contract. A…

In substantial litigation, disclosure orders must require a meaningful and effective search. Where electronic disclosure cannot be achieved without specialist…

Where consent to works is required under an estate management scheme, the court reviews whether consent was unreasonably withheld. It does not decide afresh…

On an interim payment application, the court must be satisfied on the balance of probabilities that the claimant would actually succeed at trial and obtain a…

The court has a wide discretion when deciding whether to split a trial. A split is inappropriate where the boundary between liability, causation and quantum…

An application for interim relief without notice requires more than a balance of convenience. The applicant must show that notice would probably cause…

A contractual obligation to award contracts ordinarily requires concluded contracts, not merely offers or opportunities to bid. The court should construe…

An adjudicator may not reconsider an issue already decided in an earlier adjudication. The binding effect of an adjudication extends to a proposition…

Where parties enter a supplemental or settlement agreement while their underlying construction contract remains operative, the court must examine the subject…

An adjudicator’s jurisdiction is determined by construing the notice of adjudication, read with the referral notice. A reference to liquidated damages “as…

A proposal form may create an enforceable insurance warranty where it is made the basis of the contract. An innocent inaccuracy can therefore render the…

In civil proceedings there is one standard of proof: whether the fact in issue is more probably true than not. The seriousness of an allegation does not create…

A dispute about the amount payable under an insurance policy falls within a loss-valuation clause even if pleaded as damages, declarations, estoppel or breach…

Information, including the content of an e-mail, is not ordinarily property capable of supporting a proprietary claim merely because it was created or received…

Tree-root damage claims are governed by the ordinary principles of negligence and nuisance. The relevant question is whether the risk of damage was reasonably…

The unsuccessful party ordinarily pays the successful party’s costs, but the court may depart from that rule where the successful party acted unreasonably in…

A professional consultant is negligent only if the advice given falls below the standard expected of a reasonably well-informed and competent member of the…

A building contractor may be under an implied term to construct works to a standard qualifying for a statutory completion certificate and to use reasonable…

Where a claimant’s conduct is said to break the chain of causation, the defendant bears the evidential burden, but the claimant retains the legal burden of…

In construction contracts, ownership of plant, equipment, materials or goods is primarily determined by construing the contract as a whole. Clear wording that…

A proposed agreement under which a public authority grants a long lease of land does not engage Article 56 TFEU merely because the lessee may later develop the…

A solicitor acting under a conditional fee agreement does not become a non-party litigation funder merely because the client is impecunious, lacks…

For an ad hoc adjudication agreement, whether a party submitted to the adjudicator’s jurisdiction is a question of fact, determined by construing…

In a public procurement challenge based on manifest error, unfairness or unequal treatment, the court performs a limited review. It does not re-mark competing…

The statutory safety regulations did not create a private cause of action, but informed the scope and content of the distributors’ tortious duty. A distributor…

In exercising its discretion on costs, the court must begin with the structured consequences of a valid CPR Part 36 offer. If those consequences do not apply…

Interest under section 35A of the Senior Courts Act 1981 should generally reflect the commercial cost of borrowing for claimants in the relevant class. The…

An adjudicator may determine his own jurisdiction where the parties have agreed that he has exclusive jurisdiction, in the first instance, to determine the…

An unless order takes effect automatically when there is a material breach, subject to the court’s discretion to grant relief. Compliance is assessed by…

In tree-root subsidence claims, liability is determined by the ordinary principles of negligence and nuisance. Where the possible causes are confined to…

A contractual obligation to supply products on order does not ordinarily require a manufacturer to maintain stock. Where a contract covers derivatives, a…

Standard terms may be incorporated expressly through a credit application or impliedly through a sufficiently consistent course of dealing. An onerous…

Damages for physical damage are assessed by reference to the reasonable cost of reinstatement. Actual expenditure and payments by insurers are evidentially…

A project manager engaged on a construction project must exercise reasonable care and skill to protect the client’s interests, including by pursuing execution…

When deciding whether to extend time for compliance with a case-management order, the court may weigh the party’s responsibility for delay, the extent of any…

In a public procurement challenge, the 30-day limitation period begins when the tenderer knows, or ought to know, the basic facts clearly indicating an…

An interim payment is discretionary, even where the claimant satisfies the threshold condition that judgment for a substantial sum would probably be obtained.…

Amendments to pleadings should generally be allowed where they enable the real dispute to be decided and any prejudice can be compensated in costs, but the…

An application for security for costs under CPR 25.12 and CPR 25.13 involves two stages. The defendant must first show a reason to believe that the claimant…

Where a construction contract provides a substantive contractual remedy for late payment, interest under the Late Payment of Commercial Debts (Interest) Act…

Unsuccessful parties to an adjudication must generally pay the adjudicator’s award without setting off an unrelated claim. The court will permit a set-off only…

Under a JCT design-and-build contract, contractor design liability arises only for work within the contractual categories and clearly notified in writing by…

Construction adjudication decisions must generally be paid promptly and cannot ordinarily be defeated by a later withholding notice or cross-claim. A…

A preliminary issue must be determined by reference to the pleadings and cannot be used to bypass an admission or introduce a materially different case without…

A dispute for adjudication must have crystallised before the notice of adjudication is served. A general reservation to add to a claim does not automatically…

Once the parties agree the appropriate starting value, a primary claim that a property lost an actual sale may be advanced without expert evidence on whether…

A claim for breach of contract and statutory duties by a managing director is not necessarily a claim in professional negligence requiring preliminary expert…

The court has jurisdiction to grant a declaration concerning an ongoing adjudication, but should exercise that jurisdiction only rarely. The court must…

A binding construction contract may arise before formal documents are signed, but an unresolved term will prevent contract formation where it is important and…

A consent case-management order may be varied under the Civil Procedure Rules 1998, but the court must consider the overriding objective and all the…

A contractual certification mechanism does not necessarily break down because one party fails or refuses to issue a certificate when due. The court must…

Settlement agreements are construed by ordinary contractual principles, having regard to the background reasonably available to the parties and business common…

The Pre-Action Protocol for Construction and Engineering Disputes must be applied in the context of the overriding objective. It is not a tactical device or an…

An adjudication dispute may crystallise before the contractual payment date. A disagreement about the valuation of interim work is capable of referral once the…

Interest on general damages for nuisance is governed by the statutory discretion under section 35A of the Senior Courts Act 1981. Personal-injury authorities…

Certified sums under a construction contract become payable on the contractual final date where no withholding notice has been served. A supplemental agreement…

In assessing reasonable care during hot work, the court must consider the operation, its known risks, the precautions adopted and the parties’ agreement. The…

An order for inspection or preservation of relevant property under Civil Procedure Rules 1998, Part 25.1 must be necessary and proportionate. The court should…

An indemnity costs order requires conduct taking the case outside the norm, although moral condemnation is unnecessary. The abandonment of a substantial claim…

Strike out and summary judgment are exceptional remedies. The court should not conduct a mini-trial where the pleaded allegations require disclosure, witness…

Parties who have had ample time to address electronic disclosure should ordinarily comply with the court’s timetable. A voluntary change of solicitors at a…

Legal professional privilege generally applies only to communications with a qualified and practising lawyer acting in that professional capacity. The…

Where an insolvent company seeks to continue litigation, the court has a broad discretion to order security for costs. It must balance the claimant’s ability…

A party seeking an extension of time to comply with a final case-management order must provide a sufficiently strong justification. A voluntary change of…

Parties must comply with court-ordered timetables for trial preparation. A party’s limited litigation resources, including arrangements involving conditional…

A split between liability and quantum is a case-management decision requiring adequate information about the loss claimed. The court must be able to understand…

In complex electronic disclosure, wasted-costs orders may be made where a party’s mistake or error has significant consequences in time and cost. Serious…

In the London TCC, claims valued below £250,000 should generally be commenced in a County Court or another suitable High Court centre with TCC-designated…

An adjudicator’s decision will be enforced where the alleged breach of natural justice did not materially affect the result. A point raised by the adjudicator…

Under section 78 of the Building Act 1984, emergency powers are justified only where immediate action is necessary to remove danger. A dangerous condition…

Where a Part 36 offer is accepted after the relevant period, the usual costs order should be displaced only where it would be unjust for the claimant to pay…

Professional-negligence allegations generally require supporting expert evidence where breach or causation depends on professional standards. That requirement…

Enforcement of an adjudicator’s decision may be refused where the adjudicator determines the dispute on a materially different basis from that referred. The…

Costs incurred by claims consultants or other third parties may be recoverable where they are incurred solely to advance or defend a claim, provided the third…

A solicitor’s functions and responsibilities are primarily determined by the relevant retainer. A long-standing professional relationship, repeated specific…

Civil Procedure Rules 1998, Part 36 is a self-contained and prescriptive procedural code. An offer must comply with its mandatory formal requirements to obtain…